UTTER, Justice, dissenting.

I respectfully dissent. I join with Justice Kennedy in his conclusion that the trial court abused its discretion in refusing to allow appellant's trial amendment. I agree with his conclusion because in my opinion the trial amendment merely amplified or clarified the pleading upon which appellants went to trial.

In their Third Amended Original Petition, their live pleading at trial, appellants alleged that appellee was negligent due to:

1. The failure of THE UTILITY COMPANY to make proper inspections, appraisals and surveys of their transmission lines in the area in question, for unsafe conditions of a nature which were the proximate cause of the death of Lynn Wendell. (Emphasis added.)

Appellee neither objected nor excepted to these pleadings. In the absence of special exceptions, courts will liberally construe pleadings in favor of the pleader. Roark v. Allen, 633 S.W.2d 804 (Tex. 1982); J.M. Hollis Construction Co., Inc. v. Paul Durham Co., 641 S.W.2d 354 (Tex.App.-Corpus Christi 1982, no writ).

"It is a general rule, so well established as to need no citation of authority, that the petition will be construed as favorably as possible for the pleader. The Court will look to the pleader's intendment and the pleading will be upheld even if some element of a cause of action has not be specifically alleged. Every fact will be supplied that can reasonably be inferred from what is specifically stated." Gulf, Colorado Santa Fe Railway Co. v. Bliss, 368 S.W.2d 594 (Tex. 1963).

In their trial pleading, appellants alleged the failure of CP L to make proper surveys of the distribution lines in the area in question for unsafe conditions of a nature which were the proximate cause of the death of Lynn Wendell.

During the course of the trial, appellants offered the trial amendment in question which set forth:

1. Plaintiffs allege that CP L owned and maintained the distribution line which came into contact with the spud pole in question, in and over lot 43 of the area in question, and that such constitutes negligence.

As reflected in the record, the trial court sua sponte denied appellant's request for the trial amendment. Appellant was given no opportunity to explain the basis for the requested trial amendment, and appellee was given no opportunity to respond to the request.

In accordance with the commonly understood definition of the term "to survey," the specific allegation in the trial amendment in question was that appellee failed to make proper surveys of its distribution lines. The obvious import of said allegation was that, if appellee had properly surveyed said lines, it would have discovered that the distribution lines were not confined to the right-of-way but extended eight and one-half inches over Lot 43, posing a potentially unsafe condition, which was the proximate cause of the death of Lynn Wendell. It is my opinion that the trial amendment should have been allowed to allow the pleadings to conform with the evidence which had been previously introduced.

However, I am further of the opinion that the allowance of the trial amendment was not necessary to support the submission of appellants requested issues which is the primary basis of appellant's complaint. Mr. Keller testified without objection that, if the distribution line had been outside Lot 43, the accident would not have happened. Thus, we have the trial pleadings which support the independent introduction of such evidence and, therefore, it follows that there is sufficient evidence to support the submission of the requested issues.

At the close of the presentation of testimony, appellant requested the following special issues:

SPECIAL ISSUE NO.

Do you find from a preponderance of the evidence that the distribution line which came into contact with the spud pole was owned and maintained by the Utility Company in and over lot 43 of the area in question?

Answer: "We do" or "We do not."

We, the Jury, answer:___

If you have answered Issue No. __________ "We do", then answer Issue No. __________; otherwise do not answer Issue No. __________,

SPECIAL ISSUE NO.

Do you find from a preponderance of the evidence that erecting and maintaining the distribution lines in question over the rigging area constituted negligence?

Answer: "We do" or "We do not."

We, the Jury, answer:______

SPECIAL ISSUE NO.

Do you find from a preponderance of the evidence that such negligence was a proximate cause of the death of Lynn Wendell?

Answer: "We do" or "We do not."

We, the Jury, answer:______

PLAINTIFF'S SPECIAL ISSUE NO.

Do you find from a preponderance of the evidence that Central Power and Light Company intended to install the high voltage wire in question over Lot 43?

It did so intend ____________________________________

It did not so intend ____________________________

The majority opinion makes note of the fact that appellants' first point of error reads as follows:

It is error for the trial court to refuse to submit plaintiffs' trial amendment, to wit . . . and to refuse to submit plaintiffs' requested special issues in connection with such trial amendment. (Emphasis added [by the majority].)

The majority would have us view restrictively appellants' first point of error as regarding only the requested special issues as they relate to the issue raised in the trial amendment, which issue, as the majority contends, was not sufficiently raised by the appellants' trial pleading. However, since briefing rules are to be liberally construed in an effort to ascertain an appellant's real basis for appeal, TEX.R.CIV.P. 418 and 422, In re Marriage of Greer, 483 S.W.2d 490 (Tex.Civ.App.-Amarillo 1972, writ dism'd), we need not restrictively view appellants' first point of error as the majority does. The first requested special issue regards an uncontroverted fact issue and need not have been submitted, Texas Employers' Insurance Association v. Miller, 596 S.W.2d 621 (Tex.Civ.App.-Waco 1980, no writ). All of appellants' requested special issues, in my opinion, relate to a pleaded issue, to wit, "The failure of THE UTILITY COMPANY to make proper inspections, appraisals and surveys of their transmission lines in the area in question, for unsafe conditions of a nature which were the proximate cause of the death of Lynn Wendell." (Emphasis added.) The reasonable intendment of the above-quoted pleaded issue in the trial pleading was that appellee CP L was negligent in failing to survey its distribution lines, and that, if appellee had made proper surveys of said lines, it would have discovered that the lines were not confined to the right-of-way but extended eight and one-half inches over Lot 43, posing a potentially unsafe condition, which proximately caused the death of Lynn Wendell. Said pleaded issue pervaded the entire trial and was an issue controlling the disposition of the case.

TEX.R.CIV.P. 277 provides in part:

In all jury cases the court may submit said cause upon special issues without request of either party, and, upon request of either party, shall submit the cause upon special issues controlling the disposition of the case that are raised by the written pleadings and the evidence in the case, except that, for good cause subject to review or on agreement of the parties, the court may submit the same on a general charge. (Emphasis added.)

TEX.R.CIV.P. 279 provides in part:

When the court submits a case upon special issues, he shall submit the controlling issues made by the written pleadings

and the evidence. (Emphasis added.)

Under TEX.R.CIV.P. 277 and 279, when the court submits a cause of action upon special issues, it shall submit the cause upon special issues controlling the disposition of the case that are raised by the written pleadings and the evidence in the case; and, failure to do so, under such circumstances, is reversible error. Chrysler Corporation v. McMorries, 657 S.W.2d 858 (Tex.App.-Amarillo 1983, no writ); First State Bank, Morton v. Chesshir, 634 S.W.2d 742 (Tex.App.-Amarillo 1982, writ ref'd n.r.e.). The trial court only has discretion in the manner in which the required special issues are submitted. See TEX.R.CIV.P. 277 and 279; Braugh v. Phillips, 557 S.W.2d 155 (Tex.Civ.App.-Corpus Christi 1977, writ ref'd n.r.e.).

In my opinion and in accordance with liberal construction of the trial pleading and related points of error and in view of the testimony set forth in the majority opinion and Justice Kennedy's dissent, the trial pleading and testimony were sufficient to support the submission of appellants' requested special issues. Furthermore, since the trial pleading and testimony sufficiently supported the requested special issues, the trial court was mandatorily required under TEX.R.CIV.P. 277 and 279 and the above case authority to submit the requested special issues which involved controverted fact issues. The trial court erred in refusing the requested special issues. I would sustain appellants' first point of error.

KENNEDY, Justice, dissenting.

I respectfully dissent. For the reasons hereinafter stated, I am of the opinion that the trial amendment should have been allowed and that the jury should have been allowed to answer appellant's requested special issues concerning such trial amendment. I would reverse and remand.

Appellants, by their first point of error, complain of the trial court's refusal to permit a trial amendment and the submission of related special issues. Appellant asserts that the issues were tried by consent and that a trial amendment should have been allowed to conform the pleadings to the proof under TEX.R.CIV.P. 66, 67. The majority opinion holds that the issues were not tried by consent. The trial amendment and special issues are set out in the majority opinion.

Trial amendments were offered on three occasions by the appellants. On all three occasions, the amendment was denied by the trial court before objection from the appellee. Amendments to the pleadings during trial are permitted under TEX.R.CIV.P. 66, 67.

"The application of Rules 66 and 67 is within the sound discretion of the trial court. Nevertheless, that discretion is to be exercised liberally in favor of justice." Putter v. Anderson, 601 S.W.2d 73, 76 (Tex.Civ.App.-Dallas 1980, writ ref'd n.r.e.). However, the difference between Rules 63 and 66 and Rule 67 is apparent from the study of Johns-Manville Sales Corp. v. R.J. Reagan Co., Inc., 577 S.W.2d 341 (Tex.Civ.App.-Waco 1979, writ ref'd n.r.e.). The appellant in that case submitted amended pleadings four days before the trial was set, and the Waco court held that it was not an abuse of discretion to refuse the new pleadings as untimely when appellee asserted "surprise." However, appellant introduced evidence on the issues asserted in the refused pleading and it was held to be an abuse of discretion to refuse the trial amendment embodying substantially the same allegations as the previously refused pleading. Under Rule

66, a trial amendment should be allowed in the absence of a showing of surprise or prejudice by the opposite party. Inesco, Inc. v. Sears, 567 S.W.2d 827 (Tex.Civ.App. — Beaumont 1978, writ ref'd n.r.e.); Home Indemnity Co. v. Draper, 504 S.W.2d 570 (Tex.Civ.App.-Houston [1st Dist.] 1973, writ ref'd n.r.e.). However, I do not believe that appellant has met his burden to show a clear abuse of discretion by the trial court under Rule 66. Durham v. Uvalde Rock Asphalt Co., 599 S.W.2d 866 (Tex.Civ.App.-San Antonio 1980, no writ). See Hardin v. Hardin, 597 S.W.2d 347 (Tex. 1980) (interpreting Rule 63 to say that the burden is on the complaining party to show abuse of discretion, not on opposite party to show surprise). It is clear, therefore, that the standard for applying Rule 67 differs from Rules 63 and 66.

In a survey of recent cases decided under Rule 67, I find that in no case has the granting of a trial amendment to conform the pleadings to the evidence been found to be an abuse of discretion. In two cases it has been held that the granting of the amendment was not an abuse of discretion. When the amendment was denied, I found six cases where it was held that the trial court abused his discretion, and five wherein he did not.

I believe that a trial amendment to conform the pleadings to the evidence so as to permit submission of jury issues should be allowed when the issues have been tried by consent and there is no extraordinary delay in submitting the amendment or other unusual circumstances. It, therefore, must be considered what comprises trial by consent and whether it occurred in this case.

"Trial by consent" has apparently never been defined. In order to properly define this term, one should look at the circumstances under which it was adopted and how it has been used.

When the Texas Rules of Civil Procedure were adopted, effective September 1, 1941, Rule 67 was in its current form. It was adopted by the Supreme Court, against the background of such cases as Denison v. League, 16 Tex. 399 (1856); Mims v. Mitchell, 1 Tex. 443 (1846); and McKinney v. Bradbury, Dallam 441 (1841). "The party making an averment must show that the allegata and the probata must correspond." McKinney at 443. "The allegata must be broad enough to let in the proof, and that no evidence, not supported by the allegata, can sustain a verdict." Denison v. League at 409.

Although the rule that the proof must conform to the pleadings prevented surprise and trial by ambush, it also

led to harsh results when there is an omission or defect in the pleadings and the pleader has a valid claim or defense. The Texas Rules of Civil Procedure, including Rules 45, 63, 66 and 67 were intended to permit the merits of the case to be reached despite pleading errors. It has been said:

Rule 45, Texas Rules of Civil Procedure, requires a defendant's pleading to consist "of a statement in plain and concise language" of his "grounds of defense," and provides that they shall be so construed as to do substantial justice. "Fair notice" by the allegations as a whole is the test for sufficiency of evidentiary pleading or conclusions excepted to. Rule 67 provides issues not raised by pleading may be tried by implied consent as if pleaded, and provides for amendment to cause pleadings to conform to evidence. Rule 94 requires that any matter "constituting an avoidance or affirmative defense" be "set forth affirmatively." Rules 67, 277 and 279 restrict jury issues to those raised by affirmative written pleadings.

Texas early rejected the English system of pleading and adopted that of the Roman, or civil law as modified by Spanish and Mexican practice. From the Act of 1836, enacted by the first Congress of the Republic, through the Practice Act of 1846 and to the adoption of the present Rules, the general design and policy of the Texas system of pleading has been to require parties to "set forth in plain and intelligible manner the facts upon which they rely."

Gunnells Sand Co. v. Wilhite, 389 S.W.2d 596 (Tex.Civ.App.-Waco 1965, writ ref'd n.r.e.). See Stayton, The Scope and Function of Pleading Under the New Federal and Texas Rules, 20 Texas L.Rev. 16 (1941). Under Rule 45, the pleadings are sufficient if they give fair and adequate notice of the facts upon which the pleader bases his claim. Roark v. Allen, 633 S.W.2d 804 (Tex. 1982).

In the same way, Rule 67 is designed to prevent the harsh results of the rule announced in McKinney, Mims and Denison. If the evidence has been admitted on a controversial issue, the verdict can stand under Rule 67. Texas Tool Traders, Inc. v. Mosley Machinery Co., Inc., 422 S.W.2d 229 (Tex.Civ.App.-Waco 1967, no writ). However, there is a requirement that the special issues submitted to the jury find support in the pleadings. McFadden v. Hale, 615 S.W.2d 345 (Tex.Civ.App. — Waco 1981, no writ); Murray v. Brazzel, 438 S.W.2d 382 (Tex.Civ.App.-Waco 1969 writ ref'd n.r.e.). Therefore, appellants in our case sought leave of court to amend their pleadings to conform to the evidence admitted.

Upon examination of the cases, we find that trial by consent is comprised of the following elements:

1. Presentation to the court and/or jury, for resolution of an issue of law or fact;

2. of evidence of the relevant facts;

3a. without objection, by a party present at the trial; or

3b. by the opposite party;

4. of an issue not in the pleadings.

It is implicit in this definition that evidence relevant also to an issue raised by the pleadings is not a basis for finding trial by consent. Watts v. Watts.

The majority cites Harkey v. Texas Employer's Insurance Association, 146 Tex. 504, 208 S.W.2d 919 (1948) for the proposition that submission to the jury is a requirement of

trial by consent. However, in that case, no trial amendment was requested or denied and that issue was not before the court in Harkey. The introduction of evidence on the issues of duty, breach and proximate cause regarding the wire overhanging Lot 43, entitles appellants to the amendment of the pleadings. See e.g., Cuellar v. Garcia, 621 S.W.2d 646 (Tex.Civ.App.-Austin 1981, writ ref'd n.r.e.). The evidence now supported by the pleadings entitles appellants to the submission of the special issues. Southwestern Bell Telephone Co. v. Thomas, 554 S.W.2d 672 (Tex. 1977).

The majority takes the position that evidence concerning the encroachment of the power line was also relevant on matters affirmatively pled by appellants. With this, I must firmly disagree. Appellants' pleadings contain three references to the location of the power line, i.e., the height, the fact that it was not underground and the fact that it was not across the street. Nowhere in appellants' pleadings is there a reference to the encroachment of the power line upon Lot 43. Upon examination of the record, I find that there is evidence introduced without objection that the line is located approximately eight inches over Lot 43, evidence of the propriety and safety of that location, evidence of the extent of appellee's duty to ensure a safe location and evidence that the location of the wire was a proximate cause of the death of Mr. Wendell. Specific references to the statement of facts, showing the evidence introduced and proceedings regarding the location of the wire eight inches over the lot line, which is not relevant to any other issue, is shown in an appendix to this opinion, wherein it shows that Mr. Max Keller, a CP L employee called by appellee, CP L, on cross-examination by Mr. Crites, testified that the outside line, the one closest to Lot 43, was the one contacted by the spud pole; that there were 8 foot cross arms; that the spud pole barely touched the wire; that there was not sufficient damage to the wire to make a repair; that the contact point as located from his field measurements was inside Lot 43; and that, if the wire had been outside Lot 43, the accident would not have happened.

The fact that the distribution line, owned by CP L, was over lot 43 at the time of trial is uncontroverted, and, quite clearly, the issue of negligence regarding the location of the wire was tried by consent. Prior to the offer of the amendment near the close of appellant's case, there had been no less than twenty separate references to the fact that the wire was some eight inches over the lot line. At least one-third of the more than 500 pages of testimony and proceedings up to that point were devoted to the location of this line and to the propriety and safety of that location. The first reference to the intrusion over lot 43 is actually in appellee's opening statement. The first introduction into evidence of the fact that the wire was some eight inches over the lot line was during appellee's cross-examination of appellants' expert witness.

I would, therefore, find that the issues of negligence and proximate cause regarding the fact that the wire was located approximately eight inches over lot 43 was tried by consent. I would further find that it was an abuse of discretion for the trial court to deny the trial amendment, when that amendment would do nothing more than allege an additional facet of negligence, arising out of the same occurrence as previously alleged, which has been raised by the evidence. Cuellar v. Garcia, 621 S.W.2d 646 (Tex.Civ.App.-Austin 1981, writ ref'd n.r.e.).

The trial court's refusal to permit appellants to amend their pleadings to comport with the evidence admitted without objection is error. TEX.R.CIV.P. 67; Cuellar v. Garcia. If there is evidence to support the submission of special issues, the court's refusal to submit such issues is reversible error. Southwestern Bell Telephone Company v. Thomas, 554 S.W.2d 672 (Tex. 1977).

I would sustain appellants' first point of error.

For the reasons stated above, I would reverse and remand the judgment of the trial court.

APPENDIX

The following is a summary of the evidence and proceedings relevant to the issues tried by consent and no other issue in the pleadings. VOL. IV

p. 159 Mr. Griffith testified on cross-examination by appellee that the wire which came in contact with the spud pole could overhang Lot 43 by about a foot. p. 182 Bill Wendell testified that the wire was bent from its resting position only three or four inches, that the spud pole had barely touched the wire. p. 184 Mr. Caldwell testified that the wire which came in contact with the spud pole overhung Lot 43 approximately eight inches. p. 286 Mr. Caldwell testified that he set an instrument on the monument marking the lot line and determined visually that the wire in question was over Lot 43. p. 315 After being qualified as an expert, Mr. Caldwell testified that the installation would have been safer if the line had been "routed differently so as not to cross over the area . . ." p. 327 On cross, Mr. Caldwell restates the wire was eight inches over Lot 43. p. 328 Mr. Caldwell states that the wire is eight inches over Lot 43. p. 335 Mr. Crites, attorney for Lynn Wendell Marine Service, Inc., argued to the court that the power line, being outside the utility easement, was encroaching on Lot 43.4 p. 336 Mr. Wray, attorney for defendant/appellee, states to the court that CPL's "right to put these lines where they are depends upon the fact that it's the public right-of-way." p. 357 Mr. Caldwell again testified that the line was over Lot 43, which is a launching and rigging area. p. 362 Mr. Caldwell testified that the line was over Lot 43 at the point of contact with the spud pole. VOL. V p. 399 Mr. Flanagan testified that the wire in question overhung Lot 43 by about 8 1/2 inches. p. 400 Mr. Flanagan again testifies that the wire in question is approximately eight inches over Lot 43 and that the safe clearance zone is six feet, eight inches into the parking area. p. 420 Mr. Flanagan again testifies on cross that the line overhangs Lot 43 by eight inches. p. 421 Mr. Wray asks if the location of the wire is dependent upon how plumb the pole is and Mr. Flanagan agrees. p. 422 Mr. Wray asks if a shift in the pole could cause a displacement of the wires. Mr. Flanagan states that it is not possible with the installation in question. p. 423 Mr. Flanagan testifies that the pole is pretty well in plumb, but that, being a class B pole, it is not the same diameter from top to bottom. p. 423-424 Mr. Flanagan testifies that the pole has been reguyed since the date of the accident. p. 425 Mr. Flanagan testified on cross that the photographs introduced into evidence showed that the pole was guyed in a different way at the time of the accident. p. 474 Mr. Flanagan again states that the line is eight inches over Lot 43. p. 561-563 Mr. Crites elicits from Mr. Doyle Bryant, an employee of CPL called by Plaintiff as an adverse witness, testimony regarding the location of the poles in question and CPL's standard practice in locating poles "as near as possible to the property line." p. 564-572 Mr. Crites elicits from Mr. Bryant testimony regarding the location of power poles relative to property lines and that, with 8' cross arms, power lines are often outside easements. p. 574 Mr. Crites elicits from Mr. Bryant testimony regarding whether CPL obtains easements for wires overhanging private property. p. 576-579 Mr. Wray elicits from Mr. Bryant testimony regarding obtaining easements for power lines; that the power company has a right granted by statute to put poles along a public right-of-way; that cities grant franchises for power companies; that there is no written easement in Cove Harbor; hat the installation at Cove Harbor was based on the right to place poles in the public right-of-way.

p. 579-584 Mr. Wray elicits from Mr. Bryant testimony regarding the location of the poles in question; the length of the cross arm; the location of the lot line; the CPL standard for locating poles as nearly as possible to the property line and whether or not this takes into consideration the cross arm. p. 584 Mr. Bryant testifies in response to leading questions by Mr. Wray that the navigation district owned Cove Harbor and that there was no objection to or discussion of the location of the poles prior to the accident. p. 587 Mr. Crites, by leading question, asked Mr. Bryant if there was a franchise governing the placement of poles at Cove Harbor; Mr. Bryant replied "No." p. 588 The Court asked the witness the names of the roads in Cove Harbor; Mr. Bryant responded that he didn't know of any names. p. 589 Plaintiff/appellant offers a trial amendment alleging CPL maintained the power line over Lot 43, which constitutes negligence. Denied, prior to response by defendant/appellee. p. 594 Louise Lawhon, employee of Lynn Wendell Marine Service, Inc., testified that she had worked for that company for six months prior to the accident. p. 594-596 On leading questions by Mr. Wray, Ms. Lawhon testified that she did not know how much shift in vertical alignment would produce an eight inch to one foot shift at 32 or 33 feet high; that she assumed a shift at the base of the pole would produce a larger shift at the top of the pole; that, to her knowledge, there had been no shift in the pole in the three years since Wendell's death, but that she would not know if it had moved; and that she could not say if the wire was over Lot 43 on the day Wendell died. p. 596-597 On redirect by Mr. Crites, Ms. Lawhon testified that she had no way to determine the location of the line; that she was not an engineer and had no training in that field; that she goes by the pole in question four or five times a day; that in all that time, she has seen no difference in the pole whatsoever. p. 598 The plaintiff rested. p. 630 Mr. Max Keller, on cross-examination by Mr. Crites, testified that the outside line, the one closest to Lot 43, was the one contacted by the spud pole; that there were 8 foot cross arms; that the spud pole barely touched the wire; that there was not sufficient damage to the wire to make a repair; that the contact point as located from his field measurements was inside Lot 43; and that, if the wire had been outside Lot 43, the accident would not have happened. VOL. VI p. 667 Mr. Walter Mosley, District Engineer for CPL, testified on direct that he had never received a complaint about the lines being eight inches out of the street right-of-way over Lot 43.4 p. 680-683 On cross, Mr. Crites, by leading questions, elicits from Mr. Mosley testimony that the poles are 45 feet in length with eight foot cross arms, buried seven feet, that the sufficiency of that depth depends upon several factors, including the soil; that the soil appeared sandy; that poles are intended to be perfectly plumb when installed; that a pole can shift six inches to two feet at the top of the pole; that, in sand, the poles generally do not shift; that the probability that the pole shifted was"slim"; that it was probably still in the same place it was set; that the pole was set in 1962 and probably had not shifted. p. 683 Mr. Mosley further testified that, in residential areas, poles are placed as close as possible to the property line, but clear of the property to allow fences to be built on the property line. p. 688 Mr. Mosley further testified that the plans, Pl.Ex. Nos. 15 and 17, were CPL's plans; that CPL built the installation; that the pole is set and the installation built according to plans. p. 689-690 Mr. Mosley further testified that CPL standards require that poles in alleys shall be as near as possible to property line, on the outside of the property line. p. 690 Mr. Mosley further testified that the pole was a 45' class five pole with an eight-foot cross arm, buried seven feet and that the wires were at approximately 32' above ground. p. 692-694 Mr. Mosley further testified that the wire would be 49 inches from the center of the pole; that, if this installation was properly done, there would inevitably be a wire over the property. p. 696 Mr. Mosley further testified that he was not aware of any agreements with the owners of Cove Harbor regarding the power installation. p. 817 Plaintiff/appellant re-offers the trial amendment and offers Special Issues regarding the location of the power line over Lot 43 and, following an off-the-record discussion, the court denies both trial amendment and Special Issues.